CATCHWORDS Practice and procedure - application for interlocutory order °- application brought proceeding - whether application can be original proceeding as a notice of motion. Federal Court of Australia Act 1976 s.4 Federal Court of Australia Rules 0.13, 0.52 EDWARD CHRISTIAAN SENT and BRIAN FORSHAW and JET CORPORATION OF AUSTRALIA PTY. LIMITED (in its capacity as Trustee of the JET CORPORATION AUSTRALIA TRUST) V. No. G 282 of 1985 Northrop J. 17 February 1986 Melbourne appeal from as separate subsumed into f Ar fay -- te yn eee ee mace ee Fee aera wprery eo. d an Pay me Sy SUT pte ee ep eee ee oe IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. °G 282 of 1985 ) ) GENERAL DIVISION BETWEEN : EDWARD CHRISTIAAN SENT and BRIAN FORSHANW Applicants and JET CORPORATION OF AUSTRALIA PTY, LIMITED (in its capacity as Trustee of the JET CORPORATION AUSTRALIA TRUST) Respondent COURT: NORTHROP J. DATE: 17 FEBRUARY 1986 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT: - 1. The application be dismissed. 2. The applicants pay the respondent's costs of the application. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) hae —---. ee IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. G 282 of 1985 wee ww GENERAL DIVISTON BETWEEN : EDWARD CHRISTIAAN SENT and BRIAN FORSHAW Applicants and JEL CORPORATION OF AUSTRALIA PTY. LIMITED (in its capacity as Trustee of the JET CORPORATION AUSTRALIA TRUST) Respondent COURT: NORTHROP J. DATE: 17 FEBRUARY 1986 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT There is before the Court an application identified as V. No. G 282 of 1985 in which Edward Christiaan Sent and Brian Forshaw are named as applicants and Jet Corporation of Australia Pty. Limited (in its capacity as Trustee of the Jet Corporation Australia Trust) is named as respondent. The application is headed "APPLICATION FOR LEAVE TO APPEAL". It is addressed to the respondent care of its solicitors. It contains a notification that before taking any step in the proceeding the respondent must enter an appearance in the Registry and the applicants' address for service is set out. ote i. ° 2 "247 4, BT ee eer py cre eee Poy It is signed by the solicitors for the applicants and it has the stamp on it of the Federal Court of Australia, Victoria District Registry and is dated 16 December 1985. The application itself seeks leave to appeal from the judgment of the Court given on 25 November 1985 in proceedings V. No. G 109 of 1383 by which the respondent was given leave to amend its Statement of Claim and application in that proceeding. By way of background, on 25 November 1985 in matter V. No. G 109 of 1983, Tet Corporation of Australia Pty. Limited was granted leave to amend its Statement of Claim in the form set out in exhibits to affidavits filed in that matter. In particular, the orders made affected the applicants in the present matter, and Brian Forshaw. arder was very specific, namely:- Edward Christiaan Sent Order 3 of that "That it is a condition of the allowance of the amendment of the Statement of Claim that so much of the action as is concerned with the cause of action introduced by these amendments shall he deemed to have begun for the purposes of the Trade Practices Act 1974 on the date on which this order is made." When judgment was given on that motion by Jet Corporation of Australia Pty. Limited for leave to amend the Statement of Claim, counsel for Messrs. Sent and Forshaw raised the problem that the amendments raised a matter which was binding upon the Federal Court constituted by a single Judge and in all probability upon a Full Court of the Federal it is sufficient to say that Court, but was a matter which was then subject to special leave of the High Court. To some extent, order 3, which has been set out above, protects the rights of Messrs. Sent and Forshaw in that regard but after judgment had been given, counsel raised this matter as well by asking whether the order granting leave to amend could be made conditional upon there being liberty given to the eighth and ninth respondents to apply to strike out the amendments in the event of the High Court appeal being successful. The Court as then constituted said that if the High Court appeal was successful, there should be no doubt that in some way the order could be set aside. This is based on the fact that this was an interlocutory order, there was no final order and if, before the action came on for trial, the High Court declared what the law was and if that declaration was contrary to the law as declared by the Full Court, the Federal Court would be bound to follow the High Court ruling and in those circumstances all necessary amendments to the Statement of Claim could be made to give effect to that, Notwithstanding that, Messrs. Sent and Forshaw then purported to make application for leave to appeal and in doing so, failed to comply with the requirements of 0.52 r.10 of the Federal Court Rules which provide for cases where leave to appeal from interlocutory judgments of the Federal Court is sought. Rule 10 is as follows:- "10. (1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the Oct i os judgment at the time of its pronouncement or within such further time as that Judge may fix. (2) Where an application has not been made in accordance with sub-rule (1), any application shall be made by motion on notice in the proceeding, and the provisions .of Order 19 shall apply. (3) An applicant under sub-rule (1) or (2) may present his case and his argument to the Court in writing pursuant to rule 15A." That rule is clear. It refers to any application for leave to appeal being made either orally to the Judge who gives judgment at the time judgment i5 pronounced or within such further time as that Judge may fix, or by motion on notice in the proceedings. It does not allow for a separate proceeding to be commenced seeking leave to appeal. In this case Messrs. Sent and Forshaw did not comply with the requirements of 0.52 r.10 but made a separate application for leave to appeal. That separate application was treated as a separate proceeding, given a different number for administrative purposes and did not comply with the requirements of the forms set out in the Federal Court Rules as to new applications. To this extent, the Registry was at fault in accepting that document. At the same time, the solicitors for Messrs. Sent and Forshaw were at fault in not complying with the requirements of the Rules. In any event, any appeal does not operate as a stay of proceedings and the mere giving of a notice of motion for leave to appeal does not operate as a Stay. In reality, what Messrs. Sent and Forshaw were seeking way see tet oe 4g ae we ns ere, ee Vee = — a wee epost a re . ares po a ore eer Was a stay of the operation of the order giving leave to amend the statement of claim pending the hearing and determination by the High Court of the matter currently before the High Court. As far as I know, that motion for a stay has not yet been made, except to the extent that today counsel for Messrs. Sent and Forshaw has submitted that under 0.13, the Court should give leave to amend the application in matter V. No. G 282 of 1985 and to treat that as a notice of motion in proceeding V. No. G 109 of 1983. In my opinion, that is not permissible. They are separate proceedings and that separateness 15 not overcome by the definition of "proceeding" appearing in s.4 of the Federal Court of Australia Act 1976. They are separate proceedings and should not be treated as if they were in the one proceeding. In any avent, the proceeding V. No. G 109 of 1983 is complicated enough and is not to be further complicated by the introduction of a separate file. In all the circumstances, the Court must dismiss the application which was issued on behalf of Messrs. Sent and Forshaw and being the matter before the Court today, V. No. G 282 of 1985, with costs. The matter was commenced by those applicants without jurisdiction and the Court in those circumstances must dismiss that application. In any event, as a matter of discretion, even if the Court had power, I would refuse leave to amend the matter by treating it as a motion. wee oe ee 7 paar he This does not mean that Messrs. Sent and Forshaw, if they are so advised, are prevented from taking out a motion seeking a stay of the order for leave to amend the Statement of Claim. That is a matter that they must determine for themselves. Seeing there is no basis for the application, it must be dismissed with costs. Accordingly, the following orders are made:- 1. The application be dismissed. 2. The applicants pay the respondent's costs of the application. Lcein'y that this and the Bive. (S) preceding pages are a true copy of the Peason: for Judgment herein of the . Justice log rdlire q ssociate ao iohnaeen dada ahead op ee ers